NEWSLETTER-2017

301 INTELLECTUAL PROPERTY LAW of the mark could be considered as a trademark right infringement. The Supreme Court, in a decision dated 2013, decided that the usage of the internet domain name that the defendant took in connection with its trade name, which was taken previously, is based on a legitimate right related to the usage of a mark within the scope of Article 9/2-E of Decree numbered 556 (newly Article7/3-D of Industrial Property Law). Usage of a mark, or similar thereto, in an internet domain name or on a page content could be considered as trademark right infringement if it is in a way to create a commercial effect . For example, advertising, publicity, or sale activities. Moreover, the commercial effect could ex- ist if there is usage as a routing code, key word in the backplane, with the purpose of being noted in the top rows of search engines, or on the pages that the right holder of the trademark is so noted 2 . The lawmaker especially gives place also in the related article to the usage of the constituents of the trademark as domain name, routing code, key word, etc., and underlines that the usage of marks on the internet may represent infringements depending on the characteristics of the solid case. The usage of the sign constituting the mark, or simi- lar thereto, as the electronic address of the web site, in other words, the domain name, may constitute infringement of a trademark right pursuant to the quality of usage, to the word included in the domain name, and to the scope of the website. Usage of the same, or the simi- lar sign of the mark as the domain name, and in a way so as to create commercial effect, if the owner of the domain name does not have a previous right that is privileged and paramount, could be considered as an infringement of the trademark right. As a matter of fact, 11th Civil Chamber of the Court of Cassation, in its decision numbered 2010/391 E., 2011/8996 K., decided that if the internet domain name had been taken long ago, as acquiescence causes loss of right, then the action based on the trademark right infringement, and unfair competition due to usage of the domain name, will be dismissed 3 . As well, the Court of Cassation states that the usage of the mark, partially or wholly, in the internet domain name does not single- 2 Çolak, p. 459. 3 Çolak, p. 463.